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Gallie v. WCAB ( Fichtel & Sachs Industries ), 2004 Pa. LEXIS 2509, Pa. Supreme Court, October 25, 2004.

The 30 day time period for the filing of a Petition for Review of a Utilization Review Determination, commences upon receipt of the UR Determination by the Provider, Employer, Employee or Insurer.  The PA Supreme Court REVERSED the decision of the Commonwealth Court and REJECTED the reasoning, that a later date of receipt by the Department of Labor & Industry, would extend this statutory time period.

In a case of first impression, the Supreme Court was asked to review the legislative intent regarding the time frame for the filing of a petition to challenge an adverse URO determination.  The facts reflect, a UR Determination denied the reasonableness and necessity of ultrasound and full body massage treatment modalities, although ongoing chiropractic adjustments were approved for treatment of the work related back injury.  The report mailing date was May 18, 2004.  CLAIMANT filed a Petition for Review. Before the WCJ she ADMITTED she received the report on May 21,2001. She alleged she mailed the Petition on June 18, 2001, but the WCJ rejected this testimony, in favor of the postmark date of June 22, 2001.  The Employer objected to the timeliness of the Petition. The WCJ rejected this argument, in favor of a statutory interpretation that the 30 day time period commenced upon receipt by the Provider, Employer, Employee, Insurer OR THE DEPARTMENT.  The WCAB rejected this modification of the statutory language and reversed. The Commonwealth Court reinstated the WCJ decision.  The Pa. Supreme Court reviewed the statutory language at section 306(f.1)(6)(iv) and agreed with the WCAB, the statute only refers to receipt of the UR Determination by the provider, employer, employee or insurer. Application of the principles of statutory construction require the "plain language" which is "clear and free from all ambiguity" must not be disregarded, under the pretext of pursuing the spirit of the law. The statute clearly identifies the commencement of the appeal period, following service of the UR Determination upon specific parties. The later date of receipt of the UR Determination by the Department, DOES NOT extend the time period. Based upon Claimant's testimony and the facts found by the WCJ, Claimant's Petition was untimely and should properly be dismissed.

PRACTICE POINTER: Document and Diary the mailing date of the UR Determination. The 30 day period for filing a Petition for Review will be strictly construed, FOR ALL PARTIES!  When filing a Petition "near the deadline", utilize US Postal form 3817, certificate of mailing, to document the date of filing.  You must have this form date stamped at the Post Office. DO NOT USE AN OFFICE POSTAGE METER STAMP. It will not preserve your filing date.